January 1, 2004
Avoiding Lawsuits is a service of the employment law training and consulting firm of Counsel Consulting Group LLC and the law firm of Powell, Trachtman, Logan, Carrle & Lombardo, P.C.
‘TIS THE SEASON ... FOR YEAR END EMPLOYEE EVALUATIONS
As They Say on Law and Order, Everything You Say Can and
Will Be Used Against You
Many companies require managers to complete written evaluations for the employees they supervise. There are lots of good reasons for such a procedure, ranging from the role these evaluations can play in constructive goal setting, to the early identification and remediation of performance problems.
At least that’s the theory. The reality is that many managers simply refuse to treat the evaluation process seriously. If they fill out the forms at all, they typically provide a uniformly “vanilla” assessment that takes little of their time, and steps on no one’s toes.
Part of the reason for this is the universal hatred of what managers perceive to be meaningless “paperwork.” But an even greater part of the explanation is the natural human impulse to avoid confrontations and unpleasantness – it’s no fun having to tell an employee, particularly one you may personally like, that he or she is performing poorly, or violating policies, or engaging in conduct that could lead to liability. Managers, like the rest of us, want to be liked, and that often results in their putting off, sometimes forever, occasions when it is necessary to be the bearer of bad news.
How Employee Evaluation Forms Prevent Employment Lawsuits
The failure to properly evaluate employees, however, is much more than a bureaucratic annoyance. For companies interested in minimizing employment practices lawsuits, it has great significance.
Here’s how the real world scenarios typically play out.
Suppose your company hires an employee, Smith, as of January 1, 2002. Your company requires employee evaluations every six months. Smith is a borderline employee – while not committing horrific errors, he is unproductive, uncooperative and does the bare minimum. However, Smith’s manager, Jones, hates confrontation, and submits evaluation forms for Smith on July 1, 2002, December 31, 2002 and July 1, 2003. They are all wishy-washy, “meeting expectations” evaluations, with no details.
By the end of 2003, Jones realizes that, in order to avoid his own adverse reviews, he will have to terminate and replace Smith. He does so, and a few months later, Smith files suit, claiming that Jones’ decision was based on the fact that Smith had a bad back and would require an accommodation under the ADA, and that Jones simply wanted to replace Smith with a younger, healthier employee.
At the trial, Jones testifies about the performance deficiencies that led to Jones’ decision to fire Smith. On cross-examination, however, Smith’s attorney confronts Jones with blow ups of Jones’ "vanilla" evaluations of Smith. The obvious and easily made point is that if Smith were really such a bad employee, Jones’ evaluations would have reflected that assessment, and the fact that the evaluations do not must mean that Jones is fabricating the accusations, after the fact, in order to cover up the real motive for firing Smith.
It’s a powerful argument that often results in a substantial verdict.
Now picture the other side of the scenario: Jones’ evaluation forms repeatedly note Smith’s deficiencies, and reflect Smith’s failure to improve despite repeated warnings. Given this kind of documentation, Smith’s attorney will have a hard time proving that Jones acted on the basis of some illicit motive. In all likelihood, Smith’s attorney would be extremely reluctant to pursue the case – unless Smith protested the evaluations at the time and can show that they are somehow bogus, how will Smith’s attorney prove that Jones acted on any basis other than Smith’s poor work record?
How Do You Get Your Managers to Create
the Right Kinds of Evaluation Documents?
Given the obvious importance of employee evaluation forms, how do you convince your company’s managers to go along with the program?
In our experience, the usual approaches – publishing policy manual provisions, sending memos reminding the managers of the obligation – do not work over the long term. Some companies discipline managers who fail to timely and thoroughly complete evaluation forms, but that is not the best motivational tactic, to be sure, and raises a host of other issues.
Our recommendation: as part of their compliance training, scare the bejeezus out of your managers by showing them, not just telling them, what will happen to them at the hands of opposing attorneys if they fail to take employee evaluations seriously. Although “management by fear” leaves a lot to be desired from a pure human relations perspective, it can be an effective compliance training tool if not overused. Fear and self-preservation are great motivators, and they produce the kind of lasting effects an ideal compliance training program should be geared to provide.
We do this during in-person training sessions by demonstrating, usually with an audience “volunteer,” the sort of cross-examination they can expect. In our e-learning disks and web-based training, we demonstrate a typical cross-examination, the effect of which is to create a “but for the grace of God there go I” reaction in those who participate in the program. It’s a very effective approach.
Taking the employee Smith/manager Jones scenario as an example, here’s how the cross-examination demonstration unfolds:
Q: Mr. Jones, you take the job of managing the people who work for you very seriously, don’t you?
A. Of course.
Q. And you would never knowingly lie or make misrepresentations about an employee who works for you, would you?
A. Of course not.
Q. Mr. Jones, in your capacity as a manager, you are required to fill out employee evaluation forms every six months, isn’t that so?
A. Yes.
Q. Now, Mr. Jones, I am showing you the three evaluation forms, covering a year and a half, that you filled out and signed in reference to Mr. Smith. Do you recognize these forms?
A. Yes, they are the evaluations for Mr. Smith.
Q. Mr. Jones, let me direct your attention to the directions at the top of each of these forms. Would you read what it says to the jury?
A. It says: “You are to complete this form accurately and completely. Be certain to set forth in detail each performance or conduct deficiency that applies to the employee being evaluated.”
Q. And when you complete the form, you have to sign it, which verifies that you filled it out as required, right?
A. Correct.
Q. And you signed each of these forms, right?
A. Yes.
Q. Now you would not lie to your employer would you? You’re not a liar, are you?
A. No, I am not a liar.
Q. And you have already told us that you would never lie or make a misrepresentation about an employee. You stand by that, don’t you?
A. Yes.
Q. So, because you are not a liar and you would certainly not make a misrepresentation about an employee, we can assume that what is on these employee evaluation forms is the truth, right?
A. I guess that’s right.
Q. Now, Mr. Jones, you testified that you fired Mr. Smith because, for over a year, he had not properly performed his job. Does that remain your version of the facts?
A. Yes, that is why I fired him.
Q. Mr. Jones, please point out to the jury where, on any of the evaluation forms, you wrote down that Mr. Smith had not properly performed his job and was subject to termination.
A. I did not write that down.
Q. Let’s get specific. In response to the question on page 1 of the evaluation which asks if Mr. Smith displays the skills required for his job, tell the jury what you said.
A. The form says Mr. Smith was meeting expectations.
Q. And, on page 2, where it asks if Mr. Smith uses his best efforts to perform his job duties as directed, what did you say?
A. It says he is meeting expectations.
Q. And on page 3, where the form asked if Mr. Smith displays a helpful and cooperative attitude, what did you say?
A. Again, I said he was meeting expectations.
Q. In each instance, there is a space to write comments or explanations. Read all the comments or explanations in which you qualified your assessment of Mr. Smith in any way.
A. There aren’t any.
Q. Well, would you agree that, these being employee evaluation forms, if in fact Mr. Smith were not doing his job, this would be the place to state that clearly?
A. Yes.
Q. Did you hire a replacement for Mr. Smith?
A. Yes.
Q. How old is the replacement?
A. He is 26.
Q. And you knew from his file that Mr. Smith was 52, isn’t that right?
A. Yes.
Q. And you also knew that Mr. Smith had some medical issues that might cause him to lose some time, or might require you to accommodate him as required by the ADA. Right?
A. He told me he had a bad back.
Q. But it is your testimony – under oath – that these factors had nothing to do with the decision to fire him but, instead, he was fired based on performance. Is that right?
A. Correct.
Q. And at the same time, you admit that the evaluation forms you accurately filled out and signed say nothing about these supposed performance issues?
A. They speak for themselves.
Q. The truth is, if Mr. Smith were really a bad employee, the evaluation forms would have said something about that. Isn’t that right?
A. I didn’t want to hurt his feelings or his job prospects.
Q. So you lied on the forms in order to protect Mr. Smith. Is that what you are saying?
A. I did not tell the whole truth because I did not want to hurt him.
Q. Did not want to hurt him? You didn’t care so much about that when you fired him, did you?
A. He left me no choice.
Q. You had the choice to long ago tell him on the evaluation form if he really was messing up on the job, so he could improve and avoid termination. That was a choice, wasn’t it?
A. I suppose so.
Q. This explanation you have now given us – that would mean you lied under oath just a few minutes ago, when you said you would never fill out these forms in an inaccurate way. Isn’t that right?
A. If you say so.
Q. So, now that we know you will lie when it’s convenient for you to do so, let’s return to the matter at hand. You know that the company could suffer substantial damages if you fired Mr. Smith because of his age or his bad back, don’t you?
A. Yes.
Q. And if the company suffers substantial damages based on what you did, that would be pretty inconvenient for you, wouldn’t it?
A. I’m sure.
Q. And we have just established, haven’t we, that you will lie to protect yourself – just like you lied on the evaluation forms, just like you lied earlier in your testimony?
A. Not so.
Q. And you’re lying right now, for that very reason, aren’t you?
A. No, I am telling the truth.
Q. Mr. Jones, do you understand the penalties for perjury? ...
That sets the stage for a powerful summation to the jury:
Ladies and gentlemen of the jury, you have to decide who is telling the truth. It’s that simple. Mr. Smith claims that he was fired because he had a bad back and because Mr. Jones wanted to replace him with a younger employee, all of which is blatantly against the law. Mr. Jones says he fired Mr. Smith only because Mr. Smith was a bad employee. Which story makes more sense? Who is telling the truth?
It is undisputed that Mr. Jones filled out three employee evaluations before he fired Mr. Smith. It is undisputed that Mr. Jones never said one negative thing about Mr. Smith in any of those evaluations, right up to the day he fired Mr. Smith.
What is Mr. Jones’ explanation for that? Mr. Jones tells us that he did not report Mr. Smith’s poor performance on prior evaluation forms because he wanted to protect Mr. Smith. Just how stupid does Mr. Jones think you must be? Don’t you think that if Mr. Jones were really concerned about Mr. Smith’s welfare, he would have helped him improve, instead of just firing him out of the blue so that Mr. Smith could no longer support his family?
The fact is this: Mr. Jones is lying to protect himself. He knows that if the real reason for his firing Mr. Smith is brought to light, he and the company will be liable to Mr. Smith. I showed you that Mr. Jones does not mind lying under oath – he did it twice during his cross-examination, when he gave conflicting testimony about filling out the evaluation forms truthfully, and when he said he would never make a misrepresentation about an employee. Lying to protect himself is not a big deal to Mr. Jones, and he is doing it now. He needs to protect himself, because he knows he committed a horrible wrong when he fired Mr. Smith.
Don’t let Mr. Jones, and those like him, get away with this. Send them a message: in America, employees have certain rights, and employers should not be allowed to lie in the effort to decimate those rights. Show Mr. Jones and everyone like him that juries aren’t stupid, and that employers have to start telling the truth. Other employers will read about what you do – you have an opportunity to send a message that will either encourage them to keep lying, or insist on the truth.
You Can’t Just Tell Them; You Must Show Them
There are other employee evaluation issues that are equally dangerous, and those dangers can be pointed out in a similar way. For instance, some managers fill out the evaluations inconsistently, requiring one thing in one evaluation, and switching gears in the next. A skillful lawyer can turn that into evidence of a set up to get rid of an employee. Sometimes, evaluations will reveal what appears to be unlawful managerial bias – for instance, evaluations that consistently make the same sorts of negative comments about minority or women employees, but not white males, can easily be portrayed as reflecting a pattern of discrimination.
But, to make the point one last time, merely explaining the problem in a manual, or through a lecture with PowerPoint slides, will not do it. Managers need to understand, really understand, that once an employment lawsuit is filed, they are the accused and, like the TV cops say to the TV criminals, everything the managers say can and will be held against them.
Powell, Trachtman, Logan, Carrle & Lombardo, P.C. is a full service law firm with offices in suburban Philadelphia, PA, Harrisburg, PA and Cherry Hill, NJ. Powell Trachtman represents a variety of commercial enterprises, entrepreneurs and business executives in respect to their litigation, litigation avoidance planning, business formation, business transactions, estate and tax planning, and other needs. We are also approved defense counsel for numerous insurance carriers in matters pertaining to professional malpractice, products liability, employment practices, directors and officers liability, and many other fields. For more information, contact us at info@powelltrachtman.com and visit our website at www.powelltrachtman.com.
